IN THE SUPREME COURT OF THE STATE OF CALIFORNIA. Deborah Shaw, Petitioner, vs. Superior Court of the State of California, Respondent,

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2 Case No. S IN THE SUPREME COURT OF THE STATE OF CALIFORNIA Deborah Shaw, Petitioner, vs. Superior Court of the State of California, Respondent, THC- Orange County, Inc., a California corporation; Kindred Healthcare Operating, Inc., Kindred Hospitals West, LLC, Kindred H~althcare Inc., Real Parties in Interest. Court ofappeal, 2d Dist., Div. 3,. Case No. B Los Angeles County Superior Court Case No. BC Honorable Alan S. Rosenfield REAL PARTIES IN INTERESTS' OPENING BRIEF D. Gregory Valenza, SBN SHAW VALENZA LLP 300 Montgomery Street, Suite 788 San Francisco, Califon1ia Telephone: (415) Facsimile: ( 4.15) Attorneys for Attorneys for Real Parties in Interest, THC- Orange County, Inc., Kindred Healthcare Operating, Inc., Kindred Hospitals West, LLC, Kindred Healthcare Inc.

3 TABLE OF CONTENTS Page TABLE OF CONTENTS... i TABLE OF AUTHORITIES... iv I. ISSUES PRESENTED... 1 II. INTRODUCTION... 2 A. BACKGROUND AND PROCEDURAL HISTORY... 2 B. THE COURT OF APPEAL ERRONEOUSLY OVERRULED REAL PARTIES' DEMURRER TO PLAINTIFF'S WRIT PETITION... 3 C. THE COURT OF APPEAL ERRONEOUSLY CONCLUDED HEALTH AND SAFETY CODE SECTION PROVIDES A RIGHT TO A JURY TRIAL... 5 III. DISCUSSION... 6 A. THE COURT OF APPEAL ERRED BY OVERRULING REAL PARTIES' DEMURRER TO SHAW'S PETITION FOR WRIT OF MANDATE AS A MATTER OF STARE DE.CISIS This Court Has Twice Ruled that Writ Review of a Jury Trial Ruling Is Not Available, Because an Adequate Remedy at Law Exists The Court Below Erred By Choosing to Follow a Sister Court's Ruing and Declining to Follow Ness bit and Donohue... 7 B. THE COURT OF APPEAL ERRED BY OVERRULING REAL PARTIES' DEMURRER TO SHAW'S WRIT PETITION, BECAUSE SHE HAD AN ADEQUATE REMEDY AT LAW

4 TABLE OF CONTENTS (continued) Page 1. The Writ of Mandate Does Not Lie Because the Trial Court's Interpretation of a Statute as Equitable Is a Question of Law Reviewable Via Appeal Shaw Failed in Her Petition to Establish that Appeal from the Judgment Is an Inadequate Remedy at Law Byram v. Superior Court and Other Cases Allowing Writ Relief for Denial of Jury Trial Are Erroneous or Distinguishable C. STANDARD OF REVIEW FOR DENIAL OF JURY TRIAL IS DE NOVO D. THE RIGHT TO A JURY TRIAL IS LIMITED TO ACTIONS AT LAW THAT EXISTED WHEN THE STATE ADOPTED THE CONSTITUTION IN E. THE EMPLOYMENT LAW CLAIM FOR RETALIATION WAS UNKNOWN TO THE COMMONLAWIN F. THERE IS NO RIGHT TO A JlJRY TRIAL WHERE, AS HERE, THE "GIST" OF AN ACTION IS EQUITABLE RATHER THAN LEGAL G. THE GIST OF SECTION IS THE EQUITABLE CLAIM FOR RESTITUTION The Enumerated Remedies Available Under Section Establish the Action Is One for the Equitable Claim for Restitution The Statute's "Any Remedy" Language Is Limited As a Matter of Statutory Construction

5 TABLE OF CONTENTS (continued) Page 3. Even if Section , subd. (g)'s Is a "Catch All" Remedy, It Vests the Court With Equitable Power to Fashion Ren1edies as a Chancellor Shaw's Prayer in Her Complaint Does Not Determine the Gist of the Action H. SECTION IS EQUITABLE BASED ON THE STATUTORY SCHEME Section Is Part of a Regulatory Scheme The Legislature Intended Section to Extend to Hospital Workers the Protections Applicable to Long Term Care Facilities' Employees Under Section 1432,,Under Which There Is No Private Right Of Action and No Jury Trial The Legislative History Does Not Evince an Intent to Allow a Jury Trial I. THE "GIST" OF EMPLOYMENT LAW RETALIATION CLAIMS GENERALLY IS EQUITABLE IV. CONCLUSION CERTIFICATE OF WORD COUNT

6 TABLE OF AUTHORITIES Page Cases A-C Co. v. Security Pacific Nat. Batik (1985) 173 Cal. App. 3d , 30 Alvarado v. Selma Convalescent Hospital (2007) 153 Cal. App. 4th Am. Motorists Ins. Co. v. Superior Court (1998) 68 Cal. App. 4th , 18 Andrews v. Police Court of Stockton (1943) 21 Cal. 2d Auto Equity Sales v. Superior Court (1962) 57 Cal. 2d , 4, 7, 8 Babb v. Superior Court (1971) 3 Cal. 3d Bank of America Corp. v. Superior Court (2011) 198 Cal. App. 4th ~... 3 Bowles v. Superior Court (1955) 44 Cal. 2d Byram v. Superior Court (1977) 74 Cal. App. 3d , 7, 10 C & K Engineering Contractors v. Amber Steel Co. (1978)23 Cal. 3d ,23,24 Caira v. Offner, (2005) 126 Cal. App. 4th Campbell v. Regents of-university of California (2005) 35 Cal. 4th IV-

7 TABLE OF AUTHORITIES (continued) Page Carton Corp. v. Superior Court of Alameda County (1926) 76 Cal. App Clark v. Superior Court (20 1 0) 50 Cal. 4th County of Sacramento v. Superior Court (1974) 42 Cal. App. 3d , 23 Crouchman v. Superior Court (1988) 45 Cal. 3d DiPirro v. Bondo Corp. (2007) 153 Cal. App. 4th , 24, 28, 30 Donohue v. Superior Court (1892) 93 Cal , 3, 7 Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal. 3d Flannery v. Prentice (2001) 26 Cal. 4th Fletcher v. Sec. Pac. Nat'l Bank (1979) 23 Cal. 3d , 24 Franchise Tax Bd. v. Superior Court (2011) 51 Cal. 4th , 15, 17 Ginns v. Savage (1964) 61 Cal. 2d ~...." Gold v. Los Angeles Democratic League, (1975} 49 Cal. App. 3d v-

8 TABLE OF AUTHORITIES (continued) Page Grafton Partners v. Superior Court (2005) 36 Cal. 4th ~ Grayson v. Wickes Corp., (7th Cir. 1979) 607 F.2d Harris v. Capital Growth Investors XIV (1991) 52 Cal. 3d Holtz v. Superior Court of San Francisco (1970) 3 Cal. 3d Interactive Multimedia Artists v. Superior Court (1998) 62 Cal. App. 4th Johnson-Stovall v. Superior Court (1993) 17 Cal. App. 4th Lincoln v. Superior Court of Los Angeles County (1943) 22 Cal. 2d Lindelli v. Town of San Anseln1o (2006) 139 Cal. App. 4th Lohr v. Superior Court of Los Angeles County (1952) 111 Cal. App. 2d Martin v. County of L.A. (1996) 51 Cal. App. 4th , 11 McClung v. Employment Development Dept. (2004) 34 Cal: 4th Mechler v. Superior Court of Alameda County (1927) 85 Cal. App vi-

9 TABLE OF AUTHORITIES (continued) Page Mitchell v. Superior Court of Los Angeles County (1950) 98 Cal. App. 2d Nessbit v. Superior Court (1931) 214 Cal ~... passim Omaha Indemnity Co. v. Superior Court (1989) 209 Cal. App. 3d Paul arena v. Superior Court ( 1965) 231 Cal. App. 2d Peralta-Community College Dist. v. Fair Employment & Housing Com. (1990) 52 Cal. 3d Phelan v. Superior Court of San Francisco (1950) 35 Cal. 2d San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal. 4th Santa Monica Mun. Employees Ass'n v. City of Santa Monica (1987) 191 Cal. App. 3d Sarti v. Salt Creek Ltd. (2008) 167 Cal. App. 4th Schmidt v Levi Strauss & Co. (N.D. Cal. 2008) 621 F. Supp. 2d 796 ~.. 33 Selby Constructors v. McCarthy (1979) 91 Cal. App. 3d Shah v. Mt. Zion Hospital & Medical Center (9th Cir. 1981) 642 F.2d vii-

10 TABLE OF AUTHORITIES (continued) Page Shaw v. Superior Court (2014) 229 Cal. App. 4th passim Tameny v. Atlantic Richfield Co. (1980) 27 Cal. 3d , 16 Turlock Golf & Country Club v. Superior Court (1966) 240 Cal. App. 2d Union Labor Hospital Asso. v. Vance Redwood Lumber Co. (1910) 158 Cal Walton v Nova Info. Sys. (E.D. Tem ) 514 F. Supp. 2d Western Elec. Co. v. Workers' Compensation Appeals Bd. (Smith) (1979) 99 Cal. App. 3d Widney v. Superior Court of Los Angeles County (1927) 84 Cal. App Winston v. Superior Court (1987) 196 Cal. App. 3d Constitutions U.S. Const. Amend. VII Cal. Const., Article 1, Section Federal Statutes 18 U.S.C. 1514A(a) ~ A(c) U.S.C. 160(c) Vlll -

11 TABLE OF AUTHORITIES (continued). Page 42 U.S.C. 1981a e e e-5(g) P.L , Title IX, Subtitle B, 922(b), (c), 929A, 124 Stat. 1848, 1852 (20 1 0)... ~ The Civil Rights Act of 1991, Pub. L , 105 Stat State Statutes Civ. Proc. Code ~ ~... 8, 9 Health and Saf. Code ~ passim , 29 Lab. Code a, subd. (1)... 30, a, subd Other Authorities Assem. Com. on Appropriations, hearing date Jun. 23, Sen. Com. on Health & Human Services Analysis of Sen. Bill 97, mem. prepared for hearing date. of Mar. 10, 1999; Assem. C?m. on Appropriations, hearing date Jun. 23, 1999.) IX-

12 I. ISSUES PRESENTED The instant case is before this Court after the Court of Appeal issued a published opinion, granting Plaintiff I Petitioner Deborah Shaw's ("Shaw") Petition for Writ ofmandate. 1 The Court of Appeal held, in a case of first impression, that a claim under California Health and Safety Code, section , is tried to a jury rather than the Co uti. Before reaching the merits, however, the court below overruled Real Parties in Interests' 2 Demurrer to Shaw's Petition for Writ of Mandate. Real Parties based their Demurrer on this Court's unambiguous holdings, to wit: mandate is not an available remedy when a party is denied a jury trial, because the party has an adequate remedy at law, i.e., appeal from the judgment. After overruling Real Parties' Demurrer, the Court of Appeal erroneously held that a jury trial is available under Health and Safety Code section and issued a writ of mandate. In their Petition for Review, Real Parties in Interest submitted the following issues for resolution in this Court, reproduced here: 1. Are this Court's holdings in Ness bit v. Superior Court (1931) 214 Cal. 1 ("mandate is not the proper remedy to test the right to a jury trial" because "the petitioner has a sufficient remedy in the ordinary course of law by appeal"), and Donohue v. Superior Court (1892) 93 Cal. 252, binding on the Courts of Appeal, and, if so, must a Court of Appeal sustain 1 The court of Appeal's slip opinion is attached to the Petition for Review and reported at Shaw v. Superior Court (2014) 229 Cal. App~ 4th Real Parties in Interest, Defendants below, are THC- Orange County, Inc., Kindred Health care Operating, Inc., Kindred Hospitals West, LLC, Kindred Healthcare Inc. ("THC" or "Real Parties")

13 a demurrer to a petition for writ of mandate because the plaintiff has an adequate remedy at law? 2. Does a court of appeal violate Auto Equity Sales v. Superior Court (1962) 57 Cal. 2d 450, and therefore exceed its jurisdiction, by declining to follow a binding decision of this Co uti, and instead following a sister Court of Appeal's contrary decision, which neither cited nor distinguished this Court's prior decision? 3. Does an employee's cause of action for retaliation under Health and Safety Code section sound in equity, and therefore is properly tried to the court rather than a jury, given there was no analogous claim in existence as of 1850, the gist of an action under that statute is the equitable claim for restitution, the statute aids the state's regulation of health care facilities, and the statute's remedies invoke traditional equitable remedies as well as the trial court's broad equitable powers? II. INTRODUCTION A. BACKGROUND AND PROCEDURAL HISTORY Real Party in Interest THC-Orange County, Inc. ( dba Kindred Hospital- Los Angeles) employed Plaintiff I Petitioner D.eborah Shaw as a Human Resources Coordinator. 3 After THC-Orange County discharged Shaw for performance reasons, she filed a lawsuit for wrongful termination iii violation of public policy and violation of Health and.safety Code section She claims she was discharged for reporting that nurses were working with expired licenses, and that professional staff had not properly completed clinical competencies. See Slip Op. at pp.2-3, Shaw, 229 Cal. App. 4th at p These background facts and history are taken from tbe Court of Appeal's slip opinion, attached to the Petition for Review. - 2-

14 During pre-trial hearings, Respondent Superior Court ruled that the section claim is equitable in nature and, therefore, would be tried to the court rather than a jury. The trial court also certified that issue for resolution by the Court of Appeal under Civil Procedure Code section See Slip Op. at pp. 4-5, Shaw, 229 Cal. App. 4th at p Shaw filed a Petition for Writ of Mandate on or about March 17, The Court of Appeal issued an Order to Show Cause on April 17, Real Parties filed a Den1urrer and Return on or about May 13, The Court of Appeal held oral argument on June 15, 2014, and issued its opinion on August 21, Real Parties tin1ely Petitioned this Court for review. This Court granted review on November 12, B. THE COURT OF APPEAL ERRONEOUSLY OVERRULED REAL PARTIES' DEMURRER TO PLAINTIFF'S WRIT PETITION This Court twice has ruled, without any qualification, that a party's right to a jury trial in a civil action presents a question of law, reviewable via appeal rather than via mandate. See Nessbit v. Superior Court, (1931) 214 Cal. 1; Donohue v. Superior Court (1892) 93 Cal The Court of Appeal's decision in the instant case is the first to expressly decline to follow these cases. The Court below acknowledged, "Ness bit has not been reversed." Slip Op. p. 6, Shaw, 229 Cal. App. 4th at 4 Section provides in part: "Upon the written request of any party or his or her counsel, or at the judge's discretion, a judge may indicate in any interlocutory order a belief that there is a controlling question of law as to which there are substantial grounds for difference of opinion, appellate resolution of which may materially advance the conclusion of the litigation." However, that section ''does not change existing writ procedures or create a new level of appellate review." See Bank of America Corp. v. Superior Court (20 11) 198 Cal. App. 4th 862, 869 (internal quotation omitted). - 3 ~

15 p. 18. Yet, the Court of Appeal instead decided to follow the Third District's decision in Byram v. Superior Court (1977) 74 CaL App. 3d 648, 654. The Byram court held, directly contrary to Ness bit and Donohue: "A writ of mandate is a proper remedy to secure the right to a jury trial..." But the 'Byram court announced this rule without citing, distinguishing, or explaining Ness bit. The Court of Appeal in the instant case wrote that Ness bit and Byram could be "harmonized." Slip Op., p. 6, Shaw, 229 Cal. App. 4th at p. 18. That is not so. This Court in Ness bit and Donohue held without qualification that the question of whether a jury trial is available is not reviewable by writ, because the denial of trial by jury presents a question of law adequately addressable on appeal. Byram reached the opposite conclusion, apparently without considering Nesbitt or Donohue. The Byram court did not hold writ review.was "sometimes" available in an appropriate case, but rather, categorically announced that a writ is "proper." This Court in Ness bit and Donohue did not rule that writ review is sometimes available instead of post-judgment appeal. Byram and this Court's precedent therefore directly conflict. The Court below, presented with a holding ofthis Court and a contrary holding of Byram, a sister court, was not authorized to follow Byram. Unless the Legislature abrogates or this Court overrules its decisions, they bind the Courts of Appeal. See generally Auto Equity Sales v. Superior Court (1962) 57 Cal. 2d 450. Moreover, Byram is based on cursory and flawed reasoning. The Court's rationale that the writ is justified because post-judgment review is "inefficient and time consuming" is contrary to settled law, and would justify writ review of almost any material pre-trial order. Byram's justification that aggrieved parties may not be able to demonstrate prejudice on appeal is also incorrect, as the wrongful denial of a jury trial is -4-

16 reversible without a showing of actual prejudice. Moreover, in this case, Plaintiff will have a jury trial on her con1mon law, "Tameny" clain1, which the trial court will hear simultaneously with the statutory claim. The writ proceeding below interrupted a trial that would have started in March and ended before Apri11. The outcon1e of that trial may well have determined whether post-judgment appeal was desirable or warranted by either side. Therefore, the writ was not necessarily more efficient or timethrifty than allowing the case to go to trial. C. THE COURT OF APPEAL ERRONEOUSLY CONCLUDED HEALTH AND SAFETY CODE SECTION PROVIDES A RIGHT TO A JURY TRIAL The Court of Appeal's decision regarding the right to jury trial under Health and Safety Code section also was erroneous. The California Constitution does not preserve a right to a jury trial for claims that sound in equity. Section , a "whistleblower retaliation" claim, is equitable in nature. The availability of a jury trial depends on the "gist" of the claim. The "gist" of section is the equitable claim for restitution. The statute's text, legislative history, and even its placement within the Health and Safety Code's regulatory provisions, demonstrate the law vests the "court," not a jury, with significant discretion to award equitable relief. The statute, applicable to hospital facilities and their employees, is based on a similar provision applicable to long-term care facilities, which does not provide for a private right of action, much less a jury trial. Relying on a 2007 amendment to section and some ambiguous legislative history, the Court of Appeal held that section sounds in law rather than_ equity, affording Plaintiff a jury trial. The Court of Appeal focused on a "catch-all" added to the law's remedies provision

17 The Court of Appeal's decision is incorrect. The amendments to section expanded the statute's scope, including the remedies available and the class of plaintiffs protected, But these remedies remain equitable in nature. The trial court's equitable power includes the discretion to award legal damages when the court deems them to be warranted. Therefore, even if the Court of Appeal had authority to reach the merits of Shaw's Petition for Writ of Mandate, it discharged its Order to Show Cause and denied the Petition. III. DISCUSSION A. THE COURT OF APPEAL ERRED BY OVERRULING REAL PARTIES' DEMURRER TO SHAW'S PETITION FOR WRIT OF MANDATE AS A MATTER OF STARE DECISIS 1. This Court Has Twice Ruled that Writ Review of a Jury Trial Ruling Is Not Available, Because an Adeguate Remedy at Law Exists As stated, Shaw filed a Petition for Writ of Mandate in the Court of Appeal to ove11um the trial court's ruling that no jury trial is available under Health and Saf. Code section Real Parties demurred to that Petition, citing this Court's ruling in Ness bit v. Superior Court of Alameda County ( 1931) 214 Cal. 1, 7 (emphasis added). Here is what this Court wrote in Ness bit: This court and the.district Court of Appeal have squarely held in numerous civil and criminal actions and proceedings not amounting to a felony that mandate is not the proper remedy- to test the right to a jury trial. That is a question of law which the superior court has jurisdiction to hear and determine, and if error has been or shall be committed in determining that question, the petitioner has a sufficient remedy in the ordinary course of law by appeal. - 6-

18 Nessbit 214 Cal. 1, 7 (emphasis added). This Court's opinion in Ness bit is based on an earlier decision in Donohue v. Superior Court (1892) 93 Cal. 252, from which the above language is quoted. Id. at p Real Parties, in their Demurrer to Shaw's Petition for Writ of Mandate, cited both of these decisions to the Court of Appeal. The Court of Appeal acknowledged Ness bit, but stated that this Court in Ness bit "did not conclude that no case in which a jury trial was denied would ever be appropriate for writ review." Slip Op. at p.7, Shaw, 229 Cal. App. 4th at p. 19. Instead, the Court below decided to follow Byram v. Superior Court (1977) 74 Cal. App. 3d 648. In Byram, the court.considered whether the,- plaintiff had waived his right to a jury trial by failing to deposit jury fees, not whether a statute afforded him a right to jury trial. After the superior court denied relief, he sought a writ from the Court of Appeal. Without citing or distinguishing Donohue or Ness bit, the Court of Appeal in Byram simply stated: "A writ of mandate is a proper remedy to secure the right to a jury trial." Id at 654. That holding plainly contradicts this Court's decisions discussed above,, in which this Court held exactly the opposite. 2. The Court Below Erred By Choosing to Follow a Sister Court's Ruing and Declining to Follow Ness bit and Donohue In Auto Equity SaJes v. Superior Court (1962) 57 Cal. 2~ 450, this Court held: "the appellate department of the superior court exceeded its 'jurisdiction,' as that term is used in connection with the writ of certiorari, in refusing to follow a rule established by a court of superior jurisdiction" I d. at p (emphasis added). That is because "all tribunals exercising inferior jurisdiction are required to.follow decisions of courts exercising superior jurisdiction." Id. Auto Equity Sales eqljally applies to the Court of - 7 -

19 Appeal, which must follow this Court's decisions. See McClung v. Employment Development Dept. (2004) 34 Cal. 4th 467. The Courts of Appeal are not in any respect bound to follow sister courts' decisions. See Sarti v. Salt Creek Ltd. (2008) 167 Cal. App. 4th 1187, 1193 (no "horizontal stare decisis" among the courts of appeal). This Court's statement in Ness bit that there is an adequate remedy at law via appeal is a holding. The Courts of Appeal must follow this Court's holdings, even if they were issued long ago, or if later developments in the law could warrant this Court's. re-examination. See, e.g., Santa Monica Mun. Employees Ass'n v. City of Santa Monica (1987) 191 Cal. App. 3d 153 8, 1546 ("unless and until the Legislature or the California Supreme Court decides to reject the determination that current City employees can be given preference for vacancies, we are bound by that court's determination."). Therefore, the Court below acted in excess of its jurisdiction, Auto Equity Sales, 57 Cal. 2d at p. 455, by following Byram and overruling the Demurrer. B. THE COURT OF APPEAL ERRED BY OVERRULING REAL PARTIES' DEMURRER TO SHAW'S WRIT PETITION, BECAUSE SHE HAD AN ADEQUATE REMEDY AT LAW 1. The Writ of Mandate Does Not Lie Because the Trial Court's Interpretation of a Statute as Equitable Is a Question of Law Reviewable Via Appeal The general rule is that where, as here, a litigant may appeal, after trial, a superior court's allegedly erroneous ruling, tha~ litigant has an adequate remedy at law, ordinarily precluding issuance of the writ. See Civ. Proc. Code 1086 ("The writ must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law."); San Diego-Gas & Electric Co. v. Superior Court (1996) 13 Cal. 4th 893, 913 ("an appeal is normally presumed to be an adequate remedy at law, thus - 8 -

20 barring immediate review by extraordinary writ."); Andrews v. Police Court of Stockton (1943) 21 Cal. 2d 479, 480 ("The writ of mandate will not issue solely to serve the purpose of a writ of review in order to pass upon claimed errors which are properly reviewable by means of an appeal." (quoting Petaluma etc. District v. Superior Court, ( 1924) 194 Cal. 183, 184.)); Lincoln v. Superior Court of Los Angeles County (1943) 22 Cal. 2d 304, 311 ("We reaffirm that 'Mandamus may not be resorted to as a substitute for an adequate legal remedy by appeal or otherwise.'"). As stated, the denial of a jury trial is reviewable yia a post-judgment appeal. Ness bit, 214 Cal. at 7; Martin v. County of L.A. ( 1996) 51 Cal. App. 4th 688, 698. Ness bit therefore applies the above general rule to the superior court's denial of a jury trial: it is reviewable via appeal and, therefore, not via writ. See also Widney v. Superior Court of Los Angeles County (1927) 84 Cal. App. 498, 499; Mechler v. Superior Court of Alameda County (1927) 85 Cal. App. 353, Shaw Failed in Her Petition to Establish that Appeal from the Judgment Is an Inadequate Remedy at Law The litigant seeking review via writ of mandate is required to establish the absence of an adequate remedy at law. Civ. Proc. Code "The burden, of course, is on the petitioner to show that [s]he did not have such a remedy." Phelan v. Superior Court of San Francisco (1950) 35 Cal. 2d 363, 366. ) Shaw in her verified Petition for Writ of Mandate averred: "Petitioner has no plain, speedy, and adequate remedy in the ordinary course of law." See Petition for Writ of Mandate Etc. p. 6,,-r 8. She also. alleged: "If a demand for a jury trial is refused, the demanding party must seek appellate review by writ of mandate."!d., p. 6. And finally, "Petitioner will be unable to obtain a fair trail because the denial of the right to jury trial is not appealable."!d. -9

21 The Court of Appeal erred by issuing the writ based on this showing, particularly given Ness bit's unambiguous holding. Shaw did not sustain her burden to prove that post-judgment appeal of Respondent Court's ruling is inadequate. First, as this Court in Phelan noted, "general allegations, without reference to any facts, are not sufficient to sustain his burden of showing that the remedy of appeal would be inadequate." Id~ at p Second, Shaw's verified allegations that "the denial of the right to jury trial is not appealable," is without merit. Even courts that have allowed the writ recognize that the denial of a jury trial is indeed appealable from the judgment. Shaw did not demonstrate any special reason why a post-judgment appeal is inadequate. She therefore did not plead and prove the necessary requirements for writ relief. Therefore, the Court of Appeal erred in granting Shaw's Petition Byram v. Superior Court and Other Cases Allowing Writ Relief for Denial of Jury Trial Are Erroneous or Distinguishable. The Court below is the first expressly to hold that Ness bit does not preclude issuance of a writ in cases involving the denial of a jury trial. As stated, the Court of Appeal principally relied on Byram v. Superior Court (1977) 74 Cal. App. 3d 648. Byram involved a waiver of the right to jury trial via failure to timely deposit jury fees.!d. at 650. The Court of Appeal, without analysis, held as follows: A writ of mandate is a proper remedy to secure the right to a jury trial. (See Turlock Golf etc. Club v. Superior Court, supra, 240 Cal.App.2d at p. 695.) After a trial to the court it may be 5 Real Parties raised this issue below in their Demurrer and Return to the Petition for Writ of Mandate, pp

22 !d. at p difficult for the petitioner to establish that he was prejudiced by the denial of a jury trial. In addition, even if he could establish such prejudice as to warrant reversal of the judgment, such a procedure would be inefficient and time consuming. Putting aside that Byram failed to follow (or even mention) Ness bit or Donohue, the Court's decision is flawed. The reasoning that a party denied jury trial may not be able to prove prejudice on appeal is incorrect. "The denial of the right to jury trial is reversible error per se." Martin, 51 Cal. App. 4th at p Therefore, "[n]o showing of actual prejudice is required." Jb id. Byram's second point is that post-judgment appeal is "inefficient and time consuming." This Court did not so hold in Ness bit, when it decided that post-judgment appeal is sufficient. In any event, post-judgment appeal is not rendered an "inadequate remedy at law" under Civ. Proc. Code section 1086 because appeal is "inefficient and time consuming." All meritorious post-trial appeals based on pre-trial rulings are to some extent inefficient (in that one must wait until after trial for review), and take more time, as compared to immediate writ review. The appellate courts understandably are loath to routinely consider interlocutory orders via writ 6 Other Courts of Appeal also have held that the denial of jury trial based on waiver is reviewable via writ, but without mentioning or distinguishing this Court's decisions in Nessbit or Donohue. See, e.g., Johnson-Stovall v. Superior Court (1993) 17 Cal. App. 4th 808, 812; Winston v. Superior Court (1987) 196 Cal. App. 3d 600, 603 ("When a trial court has abused its discretion in denying relief from a waiver of jury trial, a writ of mandate prior to the trial is the proper remedy."); Selby Constructors v. McCarthy (1979) 91 Cal.. App. 3d 517, 522 (holding a" ruling denying a party's claim to trial by jury is reviewable by writ."); Turlock Golf & Country Club v. Superior Court (1966) 240 Cal. App. 2d

23 to avoid disrupting the normal flow of appellate work. See generally Omaha Indemnity Co. v. Superior Court (1989) 209 Cal. App. 3d 1266 ("Were reviewing courts to treat writs in the same manner as they do appeals, these courts would be trapped in an appellate gridlock."). Precisely for that reason, courts have long held that writ relief is not justified on the basis that appeals involve expense and take more time than petitions for writ relief. See Mitchell v. Superior Court of Los Angeles County (1950) 98 Cal. App. 2d 304, 305 ("The most petitioner shows in this regard is that an appeal will take time and cost money. This is insufficient."); Lohr v. Superior Court of Los Angeles County (1952) 111 Cal. App. 2d 231, 235 (same); Carton Corp. v. Superior Court of Alameda County (1926) 76 Cal. App. 434, ("the remedy by appeal is not inadequate because ordinarily it requires more time in its pursuit than either a proceeding in prohibition or mandamus..."). Moreover, Shaw's waiting for the end of the lawsuit to appeal would not be "inefficient." Shaw's common law claim for wrongful termination in violation of public policy is a claim at law, and will be tried to a jury concon1itantly with her section claim. See Slip Op. p. 5, n.7, Shaw, 229 Cal. App. 4th at p. 17. The trial court will be bound by the jury's factual findings on that claim. See Hoopes v. Dolan (2008) 168 Cal. App. 4th 146, 159 ("jury's factual findings on legal causes of action should bind the trial court when granting ancillary equitable remedies based on the same facts...").thus, if the jury finds in Shaw's favor on retaliation in the context of the common law claim, appeal of the jury trial ruling will be unnecessary. If the jury finds Shaw's employer fired her for legitimate reasons, then section would provide no assistance to her. To be sure, there are circumstances under which courts will issue writs even when a legal iss_ue is reviewable via appeal. See, e.g., Babb v. Superior Court ( 1971) 3 Cal. 3d 841, 851 ("upon occasion our attention is - 12-

24 drawn to instances of such grave nature or of such significant legal impact that we feel compelled to intervene through the issuance of an extraordinary writ."); Holtz v. Superior Court of San Francisco (1970) 3 Cal. 3d 296, 302 ("a ruling which deprives a party of the opportunity to plead his cause. of action or defense... "). However, Shaw made no showing of any special facts or circumstances that would warrant departure from the general principle that review by appeal is an adequate remedy. Finally, Byram is distinguishable because Byram concen1ed a "waiver" of jury trial. The courts "zealously guard" against waiver of the right to jury trial. See Grafton Partners v. Superior Court (2005) 36 Cal. 4th 944, 956 (collecting cases; holding no jury. waiver except as provided by statute). But this Court has distinguished the line of cases addressing waiver of a jury trial right from those deciding whether a jury trial is available for a cause of action in the first place. See Franchise Tax Bd. v. Superior Court (2010) 51 Cal. 4th 1006, 1018 n Therefore, even if the courts' vigilance to avoid waivers support writ relief in waiver cases, the instant case does not involve waiver. In sum, the Court of Appeal erred in granting Shaw's Petition for Writ of Mandate. This Court's decision in Ness bit is controlling. Ness bit remains good law because, most importantly, this Court has not overruled it. Moreover, Shaw indeed has an adequate remedy at law, via appeal, to address the superior court's ruling on whether a jury trial is available. Shaw did not in her Petition for Writ of Mandate establish any entitlement 7 Although this Court in Franchise Tax Bd. granted review of a writ, the issue was whether the trial court erred by refusing to strike a jury demand, not whether the court erred by ruling against a jury trial because of the nature of the claim. Moreover, the Court did not consider whether writ relief was appropriate, presumably because the parties did not address the issue. See Ginns v. Savage (1964) 61 Cal. 2.d 520, 524 (an opinion is not authority for a legal proposition not addressed by the court)

25 to relief that would justify a departure from Ness bit, or the general rule that a post-judgment appeal is an adequate remedy at law. Therefore, this Court should reverse the Court of Appeal's decision to overrule Real Parties' Demurrer to the Petition for Writ of Mandate. Alternatively, this Court should decide (1) whether Ness bit ren1ains good law (2) whether writ review is available for cases in- which superior courts rule on whether a jury trial is available and (3) reach the merits of whether there is a jury trial under Health and Saf. Code section See Bowles v. Superior Court (1955) 44 Cal. 2d 574, 582 ("Even though we may disagree with the determination of the District Court of Appeal as to the existence of another adequate remedy, it does not follow that we must refuse to allow the use of the writ to test the jurisdiction of the trial court."). C. STANDARD OF REVIEW FOR DENIAL OF JURY TRIAL IS DE NOVO This Court reviews de novo a trial court's ruling on whether a jury trial is required for a given cause of action. See Caira v. Offner (2005) 126 Cal. App. 4th 12, 23. D. THE RIGHT TO A JURY TRIAL IS LIMITED TO ACTIONS AT LAW THAT EXISTED WHEN THE STATE ADOPTED THE CONSTITUTION IN 1850 Article 1, Section 16 of the California Constitution provides, in pertinent part: "Trial by jury is an inviolate right and shall be secured to all... " Cal. Const., Art. I 16. Civil Procedure Code section 592 also recognizes the right to trial by jury: In actions for the recovery of specific, real, or personal property, with or without damages, or for money claimed as due upon contract, or as damages for breach of contract, or for injuries, an issue of fact must be tried by a jury, unles~ a - 14-

26 jury trial is waived, or a reference is ordered, as provided in this code. Where in these cases there are issues both of law and fact, the issue of law must be first disposed of. In other cases, issues of fact must be tried by the court, subject to its power to order any such issue to be tried by a jury, or to be referred to a referee, as provided in this code. Ibid. Section 592 does not expand the scope of the Constitution's protection. See Franchise Tax Bd, supra, 51 Cal. 4th at 1010 fn.3 ; Crouchman v. Superior Court, 45 Cal. 3d 1167, 1174 (1988). As this Court recently explained, "the state constitutional right to a jury trial 'is the right as it existed at common law in 1850, when the Constitution was first adopted, "and what that right is, is a purely historical question, a fact which is to be ascertained like any other social, political or legal fact.""' Franchise Tax Bd., 51 Cal. 4th at 1010 {citations omitted). The Court continued, quoting from several prior decisions: "As a general proposition, '[T]he jury trial is a matter of right in a civil action at law, but not in equity.' [Citations.]"... ''[I]fthe action is essentially one in equity and the relief sought 'depends upon the application of equitable doctrines,' the parties are not entitled to a jury trial." And "if a proceeding otherwise identifiable in some sense as a 'civil action at law' did not entail a right to jury trial under the comn1on law of 1850, then the modem California counterpart of that proceeding will not entail a constitutional right to trial by jury. [Citations.]" Ibid. (internal citations omitted); see Am. Motorists Ins. Co. v. Superior Court (1998) 68 Cal. App. 4th 864, 871 ("[i]fthe action is essentially one in equity and the relief sought depends upon the application <?f equitable doctrines, the parties are not entitled to a jury trial.")

27 "Our state Constitution essentially preserves the right to a jury in those actions in which there was a right to a jury trial at conm1on law at the time the Constitution was frrst adopted." Crouchman v. Superior Court, supra, 45 Cal. 3d at p (citing C & K Engineering, supra, 23 Cal. 3d at pp. 8-9.)). See County of Sacramento v. Superior Court (1974) 42 Cal. App. 3d 135, 140 ("The right to trial by jury in any particular proceeding is determined by whether the right existed at common law in 1850 when the [state] Constitution became the law of the State of California."). "Thus, the scope of the constitutional right to jury trial depends on the provisions for jury trial at common law. The historical analysis of the common law right to jury often relies on the traditional distinction between courts at law, in which a jury sat, and courts of equity, in which there was no jury." Ibid. If"a proceeding otherwise identifiable in some sense as a 'civil action at law' did not entail a right to jury trial under the common law of 1850, then the modem California counterpart of that proceeding will not entail a constitutional right to trial by jury." /d. at p E. THE EMPLOYMENT LAW CLAIM FOR RETALIATION WAS UNKNOWN TO THE COMMON LAW IN 1850 The section claim is a creature of statute, rather than common law. Therefore, the statutory clain1 did not exist at common law at To Real Parties' know ledge, there was no retaliation or "whistle blower" claim similar to section under the common law as it existed in 1850, either. Rather, until relatively recently, employers had an unfettered right to end employment "at will." See, e.g., Union Labor Hospital Asso. v. Vance Redwood Lumber Co. (1910) 158 Cal. 551, 555 ("These views touching the arbitrary right of the en1ployee to labor or to refuse to labor, and the reciprocal arbitrary right of the employer to employ or discharge labor, without regard in either case to the actuating motives, are propositions settled beyond peradventure."). See also Tameny v

28 Atlantic Richfield Co. ( 1980) 27 Cal. 3d 167, 172 ("Under the traditional common law rule... an employment contract of indefinite duration is in general terminable at 'the will' of either party."). Tameny, decided in 1980, is the first decision of this Court to recognize a tort claim for wrongful termination. Moreover, in Campbell v. Regents of University of California (2005) 35 Cal. 4th 311, 328, this Court noted that Labor Code section , a "whistleblower" statute, created a right that did not exist at common law. Section therefore creates a right that did not exist in F. THERE IS NO RIGHT TO A JURY TRIAL WHERE, AS HERE, THE "GIST" OF AN ACTION IS EQUITABLE RATHER THAN LEGAL As there was no common law "whistle-blower" claim in 1850, the question becomes whether the "gist" of the statutory claim at issue is legal or equitable. "It is a general proposition, not an absolute rule, that the right to a jury trial attaches when the 'gist' of the action is legal. Franchise Tax Bd., 51 Cal. 4th at The "court is not bound by the form of the action but rather by the nature of the rights involved and the facts of the particular case-the gist of the action."!d. at Conversely, then, when the I - "gist" of an action is equitable rather than legal, there is no right to a jury trial. See C & K Engineering Contractors v. Amber Steel Co. (1978) 23 Cal. 3d 1, 9 ("if the action is essentially one in equity and the relief sought "depends upon the application of equitable doctrines," the parties are not entitled to a jury trial."). The Court of Appeal below held: The gist of Shaw's action is the statutory violation; although it could also be viewed as an action for breach of a term implied (by statute) into her employment contract, or an action for damages for personal injury. At common law, - 17-

29 each of these classes of actions was triable by JUry. Slip op. at p.17, Shaw v. Superior Court, 229 Cal. App. 4th at 25. In fact, Shaw's lawsuit includes both a statutory and common law component. She sues not only for common law wrongful termination, for which she is entitled to a jury trial, but also for a statutory "whistle-blower" violation under section As discussed below, contrary to the Court of Appeal's decision, the "gist" of Shaw's statutory action is a claim for restitution, a claim in equity. The remedies available under the statute are restitutionary and equitable. Section is a regulatory, remedial law. The nature of analogous whistleblower-type claims is equitable. Additionally, there is nothing in the statute's text or legislative history demonstrating that the Legislature authorized a jury trial. G. THE GIST OF SECTION IS THE EQUITABLE CLAIM FOR RESTITUTION 1. The Enumerated Remedies Available Under Section Establish the Action Is One for the Equitable Claim for Restitution Health and Saf. Code section , subd. (g), provides, in pertinent part: Ibid. (emphasis added)~ An employee who has been discriminated against in employment pursuant to this section shall be entitled to reinstatement, reimbursement for lost wages and work benefits caused by the acts of the employer, and the legal costs. associated with pursuing the case, or to any remedy deemed warranted by the court pursuant to this chapter or any other applicable provision of statutory or common law

30 The statute's listed remedies are forms of restitution. A claim for "reimbursement" in essence is a claim for restitution. Am. Motorists Ins. Co., supra, 68 Cal. App. 4th at p. 874 ("the carrier's right to reimbursement for allegedly excessive or unnecessary fees and costs is a claim for equitable restitution, not a claim for damages."). Reinstaten1ent and back pay are also forms of equitable restitution. Grayson v. Wickes Corp. (7th Cir. 1979) 607 F.2d 1194, 1196 ("an award of back pay is an integral part of the equitable remedy of reinstatement."). Shaw herself conceded below "reinstatement is an equitable remedy." Petition for Writ of Mandate. p.14, n.2. Even the statute's unique costs provision is restitutionary. 8 Section provides for "reimbursement for... the legal costs associated with pursuing the case." That language provides for restitution of the an1ount the plaintiff expends- another restitutionary remedy. See Clark v. Superior Court (2010) 50 Cal. 4th 605, 615 ("restitution in a private action brought under the unfair competition law is measured by what was taken from the plaintiff."). In contrast, when a statute provides for "reasonable attorney's fees," the fees typically belong to the attorneys rather than the party. See, e.g., Flannery v. Prentice (2001) 26 Cal. 4th 572, 575 ("absent proof on remand of an enforceable agreen1ent to the contrary, the attorney fees awarded in [a FEHA] case belong to the attorneys who labored to earn them."); Lindelli v. Town of San Anselmo (2006) 139 Cal. App. 4th 1499, ("Attorney fees awarded pursuant to section belong, absent an enforceable agreement to the contrary, to the attorneys."). The Court of Appeal stated that the attorney's fees language, differing from the usual statutory language (e.g., "reasonable attorney's 8 Research discloses no California statute other than section that employs the term "legal costs associated with pursuing the case." - 19-

31 fees,"), was irrelevant to the analysis. Slip Op. at p.4 n.5, Shaw, 229 Cal. App. 4th at p.17 n.5. But the language "reimbursement... of legal costs" is directly relevant to the statute's restitutionary character. The Court of Appeal erred by disregarding this restitutionary provision in its analysis because courts consider the remedies that a statute authorizes to determine the gist. See DiPirro v. Bondo Corp. (2007) 153 Cal. App. 4th 150, 180 ("we look to the essence of the rights conferred and the relief sought... "(emphasis added).). 2. The Statute's "Any Remedy" Language Is Limited As a Matter of Statutory Construction After listing the remedies discussed above, section , subd. (g) provides for "any remedy deemed warranted by the court pursuant to this chapter or any other applicable provision of statutory or common law." See Health & Saf. Code , subd. (g). Contrary to the Court of Appeal's analysis, this provision is equitable in nature as a matter of statutory construction, and as a matter of equity jurisprudence. The statute's express inclusion of only restitutionary remedies limits the scope of the final phrase "or any remedy deemed warranted by the court'' to equitable remedies. Where, as here, a statute prescribes a list of specific remedies, courts apply the canons of statutory construction "ejusdem generis," "expressio unius est exclusio alterius," and "noscitur a sociis," to more generallanguage. 9 See, e.g., Dyna-Med, Inc. v. Fair 9 "Ejusdem generis" means. '"where general words follow the enumeration of particular classes of persons or things, the general words will be construed as applicable only to persons or things of the same general nature or class as those enumerated."' Dyna-Med, 47 Cal. 3d at 1391 n.12 (quoting Sears, Roebuck & Co., 25 Cal. 3d at 331, n.10). "Expressio unius est exclusio alterius" means: "'the expression of certain things in a statute necessarily involves exclusion of other things not expressed... '" Dyna Med, 43 Cal. 3d at 1391 n.13 (quoting Henderson v. Mann Theatres Corp. -20-

32 Employment & Housing Com. (1987) 43 Cal. 3d 1379, 1390-t391. See also Civ. Code 3534 ("Particular expressions qualify those which are general."); Harris v. Capital Growth Investors XIV(1991) 52 Cal. 3d 1142, 1160 (construing Unruh Civil Rights Act and relying on same canons of statutory construction), overruled on other grounds; Munson v. Del Taco, Inc. (2009) 46 Cal. 4th 661, 664. In Dyna-Med, for example, this Court interpreted a section of the.fair Employment and Housing Act, Govt. Code section 12970, subd. (a). The statute at the time provided: If the commission finds that a respondent has engaged in any unlawful practice under this part, it... shall issue and cause to be served on the parties an order requiring such respondent... to take such action, including, but not limited to, hiring, reinstatement or upgrading of en1ployees, with or without back pay, and restoration to n1embership in any respondent labor organization, as, in the judgment of the commission, will effectuate the purposes of this part... See Dyna-Med, 43 Cal. 3d at 1385 (quoting then-govt. Code 12970, subd. (a) (emphasis added)). The Fair Employment and Housing Commission argued the phrase "including but not limited to," and the statute's reference to remedies that "in the judgment of the commission," would "effectuate the purposes of' the FEHA, expanded the remedies available under the statute, and (1976) 65 Cal. App. 3d 397, 403). "Noscitur a sociius" means: "'the meaning of a word may be enlarged or restrained by reference to the object of the whole clause in which it "is used."' Dyna-Med, 43 Cal. 3d at 1391 n.14 (quoting People v. Stout ( 1971) 18 Cal. App. 3d 172, 177 (quoting Vilardo v. County of Sacramento (1942) 54 Cal. App. 2d 413, 420 ).)

33 authorized the FEHC to award punitive damages. This Court, applying the canons of construction discussed above, held that the "including but not limited to" language was restricted by the specifically listed items. See Dyna-Med, 43 Cal. 3d at 1391 ("Their application here to limit the commission's authority to the ordering of corrective, nonpunitive action is consistent with both the remedial purpose of the Act and the ordinary import of the statutory language."). Soon thereafter, this Court applied the same statutory construction principles to hold that the Commission did not have authority to award compensatory damages, such as monetary damages for emotional distress: In authorizing the Commission to take ~uch action, "including, but not limited to," the enumerated remedies, the Legislature intended to authorize the Commission to fashion such other corrective or equitable remedies as, in its expertise, it may devise to eliminate the discriminatory practice and make the employee whole in relation to the employment... but that the Legislature did not, by contrast, intend to authorize the Commission to adjudicate noneconomic general damage claims traditionally awarded in judicial actions between private parties. Peralta Community College Dist. v. Fair Employment & Housing Com. (1990) 52 Cal. 3d 40, 56 (emphasis added). The listed remedies in Govt. Code section therefore limited the language "including, but not limited to." The same analysis applies here. In passing the 2007 an1endment to section , the Legislature authorized the court to award remedies other than the specifically specified, restitutionary, remedies. However, the general language is circumscribeq~by the listed, equitable ren1edies. It would be absurd to construe section -22-